By all accounts, last week’s Ethics Commissioner Report on the SNC-Lavalin controversy was a bombshell, condemning as it did Mr. Trudeau’s improper attempts to infringe the prosecutorial independence of the Attorney-General’s office.
But other than revealing the extraordinary access of SNC-Lavalin to the highest ranks of government and the magnitude of the combined efforts to obtain a deferred prosecution agreement that would dismiss foreign corruption charges against the company, we learned very little we did not know before.
Indeed, the most striking part of Mr. Dion’s report is that he was denied access to important information that would bring all the facts forward and allow him to complete a proper investigation.
According to Mr. Dion, nine of twenty witnesses examined said “they had information they believed to be relevant, but that could not be disclosed because….this information would reveal a [cabinet] confidence…” Mr. Dion asked that these claims of confidence – or non-disclosure of information – be waived by Mr. Trudeau and the Clerk of the Privy Council but these requests were refused.
Whether this is more bungling by Mr. Trudeau and the Clerk’s office, or there is in fact something to hide, we will never know unless the information is subpoenaed by the RCMP in a criminal investigation and thereafter disclosed in court.
What we do know is that we do not know the full story.
We also know that the Ethics Commissioner’s office is hamstrung in its ability to investigate. The legislation empowering the Ethics Commissioner does not provide a mechanism for dealing with the refusal of a witness to reveal confidential cabinet communications.
To be fair, this is a tricky issue. Since cabinet is part of the executive branch of government, it is likely not possible that the Ethics Commissioner, a creature of the co-equal legislative branch, could by law enforce a review of such a claim. Rather, it would rest with the third branch of government – the judiciary – to determine the legitimacy of cabinet confidence.
The Ethics Commissioner could, however, be statutorily empowered to challenge a claim of cabinet confidence to a court for their review.
The leading case on court review of disclosure of a cabinet confidence is the Supreme Court case of Carey v. Ontario, in which a provincial cabinet refused to disclose communications related to a commercial dispute before the court.
The Supreme Court acknowledged that cabinet secrecy is critical to the functioning of our political institutions. Cabinet members must be free to frankly discuss matters of significant public concern and policy without fear that their remarks will be disclosed and subject to public criticism.
However, cabinet can also be a convenient place to hide damning information. As the Carey court put it, “the purpose of secrecy in government is to promote proper functioning, not to facilitate improper conduct by government.”
For this reason, cabinet confidences are not absolute but, in appropriate circumstances, courts will unveil information where the need for disclosure to get at the truth of important facts outweighs the gravity of the public interest sought to be protected by non-disclosure. As for this public interest, “there is, for example, an obvious difference between information relating to national defence and information relating to a purely commercial transaction.”
Had the Ethics Commissioner been able to apply to a court to challenge cabinet confidence in the SNC-Lavalin case, it is likely the scales would have tipped in his favor. The need for disclosure was compelling while the nature of the public interest in the confidence – much more toward the “purely commercial transaction” continuum mentioned in Carey – was comparatively weak.
There has never been a federal ethics investigation before this one where cabinet confidence, or any other claim of privileged non-disclosure, was reportedly asserted by a witness. But we now know that it can be fatal to a proper and full investigation.
To quote Mr. Dion again, “Because of my inability to access all Cabinet confidences related to the matter I must, however, report that I was unable to fully discharge the investigatory duties conferred upon me by the Act.”
While the political world is caught in the uproar of the specifics of the SNC controversy, legislators should not lose sight of the need to expand the powers of the Ethics Commissioner to obtain or seek proper access to all relevant information relating to an investigation.